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How does USPTO evaluate 'acquired distinctiveness'?

Written by Jan Buza

Co-founder of Trama

The USPTO evaluates acquired distinctiveness individually, based on the totality of the evidence you’ve submitted. The examiner assesses whether that evidence properly demonstrates that consumers associate the mark with your brand rather than perceiving the ordinary meaning of the words.

The current threshold for claiming acquired distinctiveness is five years of exclusive and continuous use. However, even if a mark has been used for a long time, the examiner may still require additional evidence depending on the mark's nature and its degree of descriptiveness. The more descriptive your mark is, the stronger your evidence needs to be. If you’re preparing to claim acquired distinctiveness, the evidence you should gather is sales figures, advertising expenditure, consumer surveys, third-party references to the mark as a brand, and evidence of intentional copying by competitors.

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